Direito ao esquecimento: o alcance da garantia fundamental frente a liberdade de informação e a expansão das novas formas de comunicação sob o paradigma do apenado

Abstract

The present work has as main object of discussion the nuances that involve the fundamental guarantee of forgetfulness, as well as offering reflection on the real possibility of realizing this right in the face of the expansion of new forms of mass communication. It discusses the framing of this right to be forgotten in the condition of fundamental guarantee protected by the Federal Constitution and by the legal system in general, based on the comparison with other rights already enshrined. It is verified that the fundamental rights and guarantees encompass the right to be forgotten, part of the analysis of how the international and national legal system and doctrine has positioned itself regarding this right, as well as making essential contextualization about what the context is. history in which forgetfulness is inserted. The internet and the new forms of mass communication cannot be disregarded from discussions that involve effectiveness in safeguarding the right to be forgotten, as this is a recent element that significantly alters social dynamics and, in fact, constitutes a potential impediment. the effectiveness of the guarantee. At this point, considerations were made about possible limits to the right to be forgotten, having identified the right to freedom of information and expression as guarantees against forgetting. Next, it examines possible legal technique to act on the concomitant effectiveness of fundamental guarantees, consideration and proportionality. Finally, the right to forget and its effectiveness is put in check from the paradigm of the re-socialization of the inmate in the process of social reintegration, starting from the considerations related to the functions of the penalty, having been presented the difficulties inherent to this process and how not to safeguarding the right to be forgotten is a potential cause of damage, and limiting the intention of the order to return the individual who has served time to the proper social life.